The
court must decide whether to grant plaintiff Equal Employment
Opportunity Commission (“EEOC”) leave to file an
amended complaint even though the deadline for filing motions
for leave to amend has expired. For the following reasons,
the court grants the EEOC's motion.

I

Because
this case is the subject of a prior opinion, EEOC v.
AccentCare, Inc., 2017 WL 2691240 (N.D. Tex. June 21,
2017) (Fitzwater, J.) (“AccentCare I”),
the court will recount only the background facts and
procedural history that are necessary to understand the
present decision.

The
EEOC filed this lawsuit on September 29, 2015 under Title I
of the American with Disabilities Act of 1990
(“ADA”), 42 U.S.C. § 12101 et seq.,
alleging that defendant AccentCare Inc.
(“AccentCare”) refused to reasonably accommodate
Alisia Beasley's (“Beasley's”) disability
(Bipolar Disorder) and discriminated against her by
terminating her employment because of her disability. On
February 16, 2016 the court entered a scheduling order that
set February 29, 2016 as the deadline for a party to file a
motion for leave to amend the pleadings. On September 13,
2016 AccentCare moved for summary judgment, which the court
granted in part and denied in part on June 14, 2017.

On July
19, 2017 the EEOC filed the instant motion for leave to file
an amended complaint. It seeks to amend ¶ 15, which
alleges, in relevant part, that “Beasley informed her
supervisor that she had seen her psychiatrist who took her
off for an indefinite period of time.” Compl. ¶
15.[1]
The EEOC seeks to clarify its use of the term
“indefinite” to summarize Beasley's email
communication. The court held in AccentCare I that,
“[u]nless and until the EEOC amends its complaint to
change this allegation, the EEOC may not contradict its
judicial admission that Beasley informed her supervisor that
she had seen her psychiatrist, who took her off for an
indefinite period of time.” AccentCare I, 2017
WL 2691240, at *4. The EEOC now seeks to amend ¶ 15 of
the complaint to reflect that “Beasley informed Ms.
Nelson that as a result of her medical condition, she would
be out for an ‘extended amount of time.'” P.
Br., Ex. 1 at 4.[2] The EEOC contends that it is seeking to
clarify factual information of which AccentCare had previous
knowledge, and that it is not seeking to allege new facts or
assert new claims. AccentCare opposes the motion, contending
that the EEOC has failed to explain the unreasonable delay in
seeking to modify the scheduling order, and that AccentCare
would be significantly prejudiced by the proposed amendment.

II

A

When,
as here, the deadline for seeking leave to amend pleadings
has expired, a court considering a motion to amend must first
determine whether to modify the scheduling order under the
Rule 16(b)(4) good cause standard. See S & W Enters.,
L.L.C. v. SouthTrust Bank of Ala., N.A.,315 F.3d 533,
536 (5th Cir. 2003); Am. Tourmaline Fields v. Int'l
Paper Co., 1998 WL 874825, at *1 (N.D. Tex. Dec. 7,
1998) (Fitzwater, J.). To meet the good cause standard, the
moving party must show that, despite its diligence, it could
not reasonably have met the scheduling order deadline.
See S & W Enters., 315 F.3d at 535. If the
movant satisfies the requirements of Rule 16(b)(4), the court
must then determine whether to grant leave to amend under the
more liberal standard of Rule 15(a)(2), which provides that
“[t]he court should freely give leave when justice so
requires.” Rule 15(a)(2); see S & W
Enters., 315 F.3d at 536; Am. Tourmaline
Fields, 1998 WL 874825, at * 1.

The
court assesses four factors when deciding whether to grant an
untimely motion for leave to amend under Rule 16(b)(4):
“(1) the explanation for the failure to timely move for
leave to amend; (2) the importance of the amendment; (3)
potential prejudice in allowing the amendment; and (4) the
availability of a continuance to cure such prejudice.”
S & W Enters., 315 F.3d at 536 (citation,
internal quotation marks, and brackets omitted). The court
considers the four factors holistically and “does not
mechanically count the number of factors that favor each
side.” EEOC v. Serv. Temps., Inc., 2009 WL
3294863, at *3 (N.D. Tex. Oct. 13, 2009) (Fitzwater, C.J.),
aff'd,679 F.3d 323 (5th Cir. 2012).

B

1

The
court first considers the EEOC's explanation for failing
to timely file a motion for leave to amend. The EEOC contends
that it did not realize until the court filed its memorandum
opinion and order in AccentCare I that use of the
term “indefinite” to summarize Beasley's
email communication in ¶ 15 of the complaint may have
created confusion for the court and the defendant. The EEOC
maintains that, before the court issued its decision in
AccentCare I, the EEOC “relied on the liberal
pleading standards of Rule 8(a)(2)” and “believed
any uncertainty in the term ‘indefinite' was
addressed in [the] subsequent statements in paragraph 15 of
the original complaint.” P. Br. 4. AccentCare responds
that the EEOC was aware of the implications of the term
“indefinite” and of AccentCare's reliance on
the term “indefinite.” AccentCare also posits
that the EEOC's belatedly seeking to modify the
scheduling order does not concern a lack of prior awareness,
but is, instead, based on the court's decision in
AccentCare I, which sustained AccentCare's
summary judgment objections, partially granted summary
judgment, and recognized the EEOC's judicial admissions.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Although
the court agrees that the EEOC was aware before the deadline
for filing motions for leave to amend of AccentCare&#39;s
reliance on the term &ldquo;indefinite&rdquo; in &para; 15 of
the complaint, the EEOC has demonstrated that it only
recently became aware of the implications of its use of the
term &ldquo;indefinite&rdquo; to summarize Beasley&#39;s
email communication. The EEOC only became aware through the
court&#39;s decision in AccentCare I, which held
that the EEOC was precluded from contradicting its judicial
admission unless and until it amended its complaint to change
this allegation. See AccentCare I, 2017 WL 2691240,
at *4. Because the EEOC only became aware from AccentCare
I of the potential consequences of its use ...

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